The National Rifle Association will be allowed to depose former New York Department of Financial Services Superintendent Maria Vullo in the group’s lawsuit against the state over what it has argued was a violation of its free speech rights and selective enforcement of the state’s insurance regulations.
U.S. Magistrate Judge Christian Hummel of the Northern District of New York wrote in the decision that, while Vullo is considered a high-ranking state official, the information sought by the NRA through discovery could likely only be obtained through her testimony, rather than other sources.
“As plaintiff has demonstrated that Ms. Vullo may have knowledge that is unique to her and any other potential source of such information would be from outside DFS, and is, at best, impractical, plaintiff has met its burden of demonstrating the existence of extraordinary circumstances warranting the deposition,” Hummel wrote.
William Brewer III, a partner at Brewer, Attorneys & Counselors in Dallas and New York City, and lead counsel for the NRA, said in a statement on Wednesday afternoon that the decision was a “significant development” for the gun lobby group.
“Today’s ruling is gratifying, and correct. As the head of a major financial regulator, Ms. Vullo singled out the NRA to suppress its speech. She should answer questions regarding this conduct,” Brewer said. “This is a significant development for the advocacy of the NRA. We are anxious to discover all the facts and bring them into open view—to the benefit of the Association and the First Amendment.”
The NRA had asked to depose Vullo as part of discovery in the lawsuit, which seeks to enjoin the state from encouraging companies to stop doing business with the NRA. The lawsuit also seeks past damages over alleged actions by Vullo and Gov. Andrew Cuomo, which the NRA has claimed could cause them significant financial hardship in the future.
Hummel’s decision is significant: It’s rare that high-ranking state or federal officials are required to testify as part of any litigation. They’re often granted immunity from testimony as a high-ranking government official.
That’s partly to prevent a deposition from interrupting their official duties, but also to protect their mental processes. It’s more common for others to testify in their place or for government officials to respond to written questions.
Since being sued by the NRA, Vullo has left her position as superintendent of DFS. She was replaced in February by Linda Lacewell, Cuomo’s former chief of staff. But Hummel said Vullo still qualifies as a high-ranking official as part of the litigation.
“The Court rejects any sweeping conclusion that a former high-ranking government official loses the high-ranking official immunity solely because he or she no longer holds the office if the proposed deposition would question relevant matters that were alleged to have occurred while the official held office and in which that official was personally involved,” Hummel wrote.
That would, ordinarily, exempt Vullo from having to testify. The New York Attorney General’s Office, which represents Vullo in the lawsuit, had argued that the NRA had not shown there were extraordinary circumstances that would require the deposition. They could try to ascertain the sought-after information from somewhere else, for example.
Hummel disagreed in his decision, saying that Vullo’s deposition by the NRA would be the most productive option for everyone’s time.
“Although proceeding with interrogatories may be a less burdensome and adequate alternative to deposing a high-ranking official in some situations, here, it does not appear that interrogatories would be comparable to Ms. Vullo’s deposition nor useful to obtain the information plaintiff seeks,” Hummel wrote.
That information pertains to communications and actions that only Vullo would be privy to, the NRA had argued before the court in Albany earlier this month. Her deposition, as Brewer said, could give the NRA further insight on the decision-making process behind the actions that ultimately led the group to sue Vullo, DFS and Cuomo last year.
The NRA filed the suit in May over claims that Cuomo and Vullo acted to financially impair the association through official state actions, which the gun lobby has said will limit its ability to advocate on behalf of gun owners in New York.
Among those actions were two letters sent by Vullo, a set of press releases from state offices and a pair of consent orders between DFS and two insurance providers.
The press release, from Cuomo’s office, directed DFS to ask financial institutions within the state to reevaluate any relationship they may have with the NRA and decide whether it may “harm their corporate reputations and jeopardize public safety.”
Vullo, in turn, sent letters to the state’s banks and insurance companies urging them to review any business dealings they may have with the gun lobby group. DFS also entered into agreements with two insurance companies to stop doing business with the NRA altogether after an investigation found they sold an insurance product marketed by the gun lobby that violated state law.
Those actions were public, and known, at the time. The NRA intends to query Vullo on what happened outside the public realm leading up to those actions that could help build their case going forward.
One example, explained by Hummel in his decision, was an email from Vullo to an official from the Insurance Department in California to discuss New York’s investigation into the allegedly unlawful insurance product, called Carry Guard. No one else from New York was on the email chain, according to the decision.
“Plaintiff contended that the e-mail, in which Ms. Vullo allegedly sought out an official from the Insurance Department of the State of California to discuss New York’s investigation of Carry Guard and similar communications to other state officials could support their selective enforcement and ‘censorship campaign’ claims, and, thus, is central to their case,” Hummel wrote.
The state had suggested that, instead of deposing Vullo, the NRA could seek testimony from the other officials with which she communicated. Hummel rejected that argument as well, saying the organization would face the same legal challenge in deposing high-ranking officials in other states as it had in asking for Vullo’s testimony in New York.
“The Court concludes that it cannot be said that seeking to depose the high-ranking out-of-state officials or proceeding with interrogatories can be considered a reasonable or practical alternative means of obtaining the information it seeks from Ms. Vullo,” Hummel wrote.
A spokesman for DFS did not immediately return a request for comment Wednesday afternoon. Vullo could not be immediately reached for comment.